U.S. v. Martinez-Jimenez

Decision Date29 September 2006
Docket NumberNo. 04-2324.,04-2324.
Citation464 F.3d 1205
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marlene MARTINEZ-JIMENEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Luis B. Juarez, Juarez Law Office, Las Vegas, NM, for Appellant.

Norman Cairns, Assistant United States Attorney (David C. Iglesias, United States Attorney, with him on the brief), Albuquerque, NM, for Appellee.

Before LUCERO, EBEL, and MURPHY, Circuit Judges.

EBEL, Circuit Judge.

Marlene Martinez-Jimenez pleaded guilty to illegal reentry by a deported alien previously convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a)(1), (a)(2), and (b)(2). She was sentenced to fifty-seven months' imprisonment based in part on the district court's conclusion that she had a criminal history category of V. On appeal, Ms. Martinez-Jimenez argues that there was insufficient evidence to prove one of the prior convictions used to establish that criminal history category. We conclude that the district court did not clearly err in finding the evidence sufficient and therefore affirm the sentence.

I. BACKGROUND

On May 13, 2004, Ms. Martinez-Jimenez was arrested by U.S. Border Patrol agents in New Mexico. She admitted to the agents that she was a citizen and national of Colombia and that she had entered the United States illegally. A records check showed that Ms. Martinez-Jimenez had previously been deported from the United States to Colombia on three separate occasions. The records also showed that prior to her first deportation, she had been convicted in New York of felony narcotics possession. On June 15, 2004, Ms. Martinez-Jimenez was charged by information with illegal reentry by a deported alien previously convicted of an aggravated felony.

Ms. Martinez-Jimenez eventually entered into a plea agreement whereby she agreed to plead guilty to the charged offense. Among other things, the plea agreement stipulated that the appropriate offense level for purposes of sentencing Ms. Martinez-Jimenez was nineteen1 and provided that her criminal history category would "be determined by the United States Probation Office and reflected in the presentence report prepared in this case."

The presentence report ("PSR") that was prepared listed multiple prior convictions in Ms. Martinez-Jimenez's criminal history and assessed a total of nine criminal history points for five of the convictions. The PSR also added two criminal history points to Ms. Martinez-Jimenez's criminal history score because she committed the instant offense while under a criminal justice sentence, see United States Sentencing Guidelines ("U.S.S.G.") § 4A1.1(d), and one criminal history point because she committed the instant offense less than two years after release from imprisonment, see id. § 4A1.1(e). The resulting total of twelve criminal history points put her in criminal history category V. See id. § 5A. When combined with the stipulated offense level of nineteen, the corresponding Guidelines sentencing range was fifty-seven to seventy-one months. Id.

Ms. Martinez-Jimenez filed objections to the PSR's calculation of her criminal history score. Specifically, she objected to the six criminal history points allocated for the four prior convictions listed in paragraphs 22, 23, 24, and 25 of the PSR.2 Ms. Martinez-Jimenez contended that the evidence that she had been convicted in those instances was insufficient; she also argued that there was insufficient proof that she had either been represented by counsel or waived her right to counsel in those prior proceedings.

At Ms. Martinez-Jimenez's sentencing hearing, the district court evaluated her objections to each of the four prior convictions. The court sustained her objections to paragraphs 23 and 25 of the PSR, concluding that there was insufficient evidence to prove those two convictions.3 Through counsel, Ms. Martinez-Jimenez orally withdrew her objection to paragraph twenty-four.4 As for her objection to the conviction in paragraph twenty-two —for attempted criminal possession of a controlled substance—the district court concluded both that there was sufficient evidence of the conviction and that Ms. Martinez-Jimenez had not met her burden of proving by a preponderance of the evidence that the conviction was constitutionally infirm.

The evidence that the district court found sufficient to prove the conviction listed in paragraph twenty-two was of two kinds. First, the probation office had procured a computer printout from the National Crime Information Center ("NCIC") that indicated that in 1989 "Marilina Martinez"5 had pleaded guilty in New York state court to "ATT CPCS-5" (attempted criminal possession of a controlled substance, 5th degree),6 a class E felony, and was sentenced on January 2, 1990 to between eighteen months' and three years' imprisonment. Second, the probation office had contacted the New York courts for information about the prior narcotics conviction and had received a letter from the Supreme Court of New York, signed by the county clerk of New York County, in response. The letter advised that "Susana Cabajar" had pleaded guilty on December 7, 1989 to "Attempted Criminal Possession of a Controlled Substance 5th Degree" and had been sentenced on January 2, 1990 to "One and half years [sic] to Three years as a Second Felony Offender." The district court concluded that these two pieces of evidence were sufficient to prove the conviction in paragraph twenty-two and that the three criminal history points for the conviction were therefore properly added to Ms. Martinez-Jimenez's criminal history score.7

Despite the district court's exclusion of the convictions listed in paragraphs 23 and 25, the final total of ten criminal history points still corresponded to criminal history category V and a Guidelines sentencing range of fifty-seven to seventy-one months. See U.S.S.G. § 5A. On November 16, 2004, the district court sentenced Ms. Martinez-Jimenez to fifty-seven months' imprisonment, the low end of that range. Because of the potential that mandatory application of the Guidelines would be found unconstitutional by the Supreme Court—a potential later realized in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)—the district court presciently proposed an identical alternative non-Guidelines sentence of fifty-seven months. Ms. Martinez-Jimenez timely filed a notice of appeal from her sentence.

II. DISCUSSION
A. Issue on appeal

On appeal, Ms. Martinez-Jimenez objects only to the district court's use of the conviction in paragraph twenty-two to increase her criminal history score by three points and thus to raise her criminal history category to V. She does not challenge the other convictions used by the district court in calculating her criminal history category, nor does she attack any other aspect of her conviction or sentence.8 Furthermore, her challenge to the conviction in paragraph twenty-two is simply that the fact of conviction was insufficiently proven; she does not claim on appeal that the conviction, if sufficiently proven, was constitutionally infirm.

At bottom, then, this appeal will determine only whether Ms. Martinez-Jimenez should have been allocated seven criminal history points instead of ten—and therefore whether she should have been sentenced using a criminal history category of IV instead of V. See U.S.S.G. § 5A. We note that Ms. Martinez-Jimenez's sentence of fifty-seven months would be a permissible Guidelines sentence regardless of which criminal history category is used: it would be the high end of the range using category IV (46-57 months) and the low end using category V (57-71 months). Nonetheless, that fact does not eliminate the need to address Ms. Martinez-Jimenez's claim of error. See United States v. Brown, 316 F.3d 1151, 1159 (10th Cir.2003) ("Where the sentencing error caused an increase in the applicable adjustment level, the fact that guideline ranges overlap does not make a plain error harmless.") (quotation omitted); see also United States v. Knight, 266 F.3d 203, 207 (3d Cir.2001) (holding that "the application of an incorrect guideline range resulting in a sentence that is also within the correct range [presumptively] affects substantial rights"). Although the district court proposed an identical alternative sentence in case the Guidelines were found unconstitutional, it did not indicate that it would have imposed an identical sentence if Ms. Martinez-Jimenez's criminal history category was IV instead of V. See United States v. Urbanek, 930 F.2d 1512, 1516 (10th Cir.1991) ("[W]e cannot agree . . . that no remand is required simply because the sentence imposed was within either of two arguably applicable Guideline ranges. Unless the district court makes it clear during the sentencing proceeding that the sentence would be the same under either of the applicable Guideline ranges, we are compelled to remand for resentencing when . . . an improper [Guidelines calculation] was applied.") (citations omitted); Alaniz v. United States, 351 F.3d 365, 368 (8th Cir.2003) (holding that a sentence falling within an area of overlap between correct and incorrect Guidelines ranges is "unreviewable only if the district court, at the time of sentencing, states unequivocally that it would impose the same sentence with or without the challenged calculation"); Knight, 266 F.3d at 208. Therefore we must address Ms. Martinez-Jimenez's challenge to the district court's decision.

B. Standard of review

"The district court's factual findings at sentencing are reviewed for clear error, while its interpretation of the Sentencing Guidelines is a question of law reviewed de novo." United States v. Simpson, 94 F.3d 1373, 1380 (10th Cir. 1996). Because the only challenge here is to the district court's factual finding that Ms. Martinez-Jimenez was convicted of attempted criminal possession of a controlled substance, our review is for clear error. W...

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